According to the interim constitution, the permanant constitution should have been presented to parliament and passed by August 15. There should have been two readings of it, two days apart, before the vote. Otherwise, parliament should have been dissolved and new elections called. Parliament avoided this fate with a last-minute amendment of the interim constitution, allowed if by 3/4 vote, though the nicety of two readings of the amendment two days apart was dispensed with (arguably, unconstitutionally, though it is a relatively minor affair). The amendment stipulated that the new constitution would by passed by August 22, with other conditions unchanged.

The new constitution, with blank passages, was presented to parliament just before midnight on August 22. But parliament did not vote on it, and a “three-day delay” was announced.

Announced?

The rule of law is no longer operating in Iraq, and no pretence of constitutional procedure is being striven for. In essence, the prime minister and president have made a sort of coup, simply disregarding the interim constitution. Given the acquiescence of parliament and the absence of a supreme court (which should have been appointed by now but was not, also unconstitutionally), there is no check or balance that could question the writ of the executive. ~Juan Cole

When Prof. Cole says that the rule of law “is no longer operating in Iraq,” he was surely having some fun with his readers. When, after all, was the rule of law operating in any meaningful sense before this? There has certainly been the fiction since the election of the current parliament that the Iraqi government was constrained by law, but did anyone really believe this? Nonetheless, the observation is a good one and drives home the point that Iraq’s constitutional development has failed on its own terms, and not simply in the eyes of critics and reactionaries such as myself.

There is no need for discussion of the fundamental oppositions between representative self-government and Islam, considerable though they are, or observations on Iraq’s artificial nature, its lack of suitable precedents for such government and Iraqis’ lack of habits of self-government. All of that may be well be true, and all of it has been said many times, but we need not wait to see whether Iraqis will succeed or not. Iraqi politicians are failing with each new test of constitutional self-government, and it is no surprise that people with no experience, no history and no real commitment to such government cannot make it work (even our country has the experience and history, if no longer any real commitment, and an honest observer could not claim that it works here any longer, either). We can see before us the contravention of the existing fundamental law by the closest thing to constitutional government Iraq will probably ever have, providing us with a sense of how seriously future Iraqi governments will take the constitution the politicians are in the process of drafting.

If Iraqis are not attempting to maintain any pretense of constitutional procedure, perhaps it is because the idea of meaningful constitutional procedure and “the rule of law” in Iraq are pretenses put up by Washington to obscure what the administration has achieved. What the administration has achieved is only slightly better than the Shi’ite theocracy against which many opponents of the war, myself included, warned both before the invasion and ever since.

Prof. Cole’s translation of the draft copy he has tracked down is revealing, in that it tells us that no law will be allowed to contravene Islamic law (obviously a victory for freedom) and also that no law may contravene the “principles of democracy.” If that last part is an accurate rendering of the text, as I assume it is, I can only laugh. What in the world could something so vague as “principles of democracy” mean? The Supreme Court here would have a field day with a phrase as empty and malleable as that; it would make the commerce clause seem like a limited, inflexible provision.

Constitutional procedure has no value to the representatives of the majority, since they have no real need of it, and the Kurds always have the option of secession (and therefore have far less incentive in observing or defending any constitutional system). The main minority group with the greatest stake in developing constitutional procedure and protection are fundamentally hostile to both the existing and proposed fundamental laws of the country. Here the lack of any suitable political tradition in Iraqi history is fatal to any attempts to create a functioning representative and constitutional system out of whole cloth. Cote d’Ivoire, not Germany and Japan, is the likely model of political development Iraq will follow.